(dissenting).
The question is the narrow one whether the conduct for which appellant was adjudged by the court guilty of criminal contempt was that of an officer of the court in an official transaction. The only authority invoked to support the judgment is 18 U.S.C. § 401(2) (1952), empowering a court of the United States to punish by fine or imprisonment such contempt of its authority “and none other, as * * * (2) Misbehavior of any of its officers in their official transactions * * *.” I assume the conduct was misbehavior within the meaning of this provision. And, of course, appellant as a member of the bar is an officer of the court. Ex parte Garland, 4 Wall. 333, 378, 71 U.S. 333, 378, 18 L.Ed. 366; Savings Bank v. Ward, 100 U.S. 195, 198, 25 L.Ed. 621; Powell v. State of Alabama, 287 U.S. 45, 73, 53 S.Ct. 55, 77 L.Ed. 158; Hickman v. Taylor, 329 U.S. 495, 510, 67 S.Ct. 385, 91 L.Ed. 4511; Booth v. Fletcher, 69 App.D.C. 351, 355, 101 F.2d 676, 680, certiorari denied, 307 U.S. 628, 59 S.Ct. 835, 83 L.Ed. 1511. But when he communicated by mail with grand jurors to obtain information in preparing his client’s case he was not engaging in an official transaction as an officer of the court. In other words, I do not think Congress intended by § 401(2) to grant courts the power by summary proceedings to police such professional behavior of a member of the bar. The well known avenues for suspending, disbarring, or otherwise disciplining attorneys are available to reach their unprofessional and unethical conduct. The criminal law is available to punish them for criminal offenses, where they “will be afforded the normal safeguards surrounding criminal prosecutions.” Nye v. United States, 313 U.S. 33, 53, 61 S.Ct. 810, 817, 85 L.Ed. 1172.2 And contempt proceedings are also available to punish “[m]isbehavior of any person” in the court’s presence or “so near thereto as to obstruct the administration of justice”, or “[d]isobedience or resistance to” the court’s “lawful writ, process, order, rule, decree, or command.” 18 U.S.C. §401(1) and (3) (1952). But the language of § 401(2), “[m]isbehavi- *331or of” court officers “in their official transactions”, is not apt wording to include a broad sweep of professional behavior of attorneys not in the presence of the court or “so near thereto as to obstruct the administration of justice.” The language no doubt does apply to the official conduct of officers of the court, such, for example, as the clerk and marshal; and to referees, trustees, masters, and attorneys in special capacities. Summary power to punish them might have been thought necessary to enable a court to function with propriety and integrity. But to construe § 401(2) to include the conduct here in question is to draw into the words “official transactions” of “officers” of the court an undefined and vague area of the professional activity of an attorney. This is not the ordinary meaning of the language and we should not, in view of Nye v. United States, supra, extend its meaning beyond the ordinary. Unless the requirements of the statute are clearly satisfied, “an offense will be dealt with as the law deals with the run of illegal acts”, id., 313 U.S. at page 51, 61 S.Ct. at page 817, and not by summary procedure without the protection of the Bill of Rights.
Ex parte Bradley, 7 Wall. 364, 74 U.S. 364, 19 L.Ed. 214, lends some support to the view of the majority. But the question in its present context was not there decided, and the opinion must now be read in the light of Nye v. United States, supra. See, also, the recent decision in Offutt v. United States, 348 U.S. 11, 14, 75 S.Ct. 11.
It must be remembered that the seriousness of the behavior, or the fact that it involved grand jurors, does not make it the behavior of a court officer in an official transaction. See Schmidt v. United States, 6 Cir., 124 F.2d 177, which, however, should be read with the earlier case of Schmidt v. United States, 6 Cir., 115 F.2d 394. The official status of the grand jurors is not in question, only the official character of appellant’s own status and behavior. I think Farese v. United States, 1 Cir., 209 F.2d 312, particularly at page 315, and the implications of In re Michael, 326 U.S. 224, 66 S.Ct. 78, 90 L.Ed. 30, also support my view that the judgment should be reversed.
. For subsequent history see Hickman v. Taylor, 3 Cir., 170 F.2d 327, certiorari denied, 336 U.S. 906, 69 S.Ct. 485, 93 L.Ed. 1071.
. For subsequent history see Nye v. United States, 4 Cir., 137 F.2d 73, certiorari denied, 320 U.S. 755, 64 S.Ct. 62, 88 L.Ed. 449.